Thumbs Up on Anderson’s House, And an Unlikely Champion of the Homeless
Andy Anderson’s efforts to build a house ostensibly for his daughter and son-in law on Tantalus have received a boost. Keith Tanaka, a former deputy attorney general who was the hearing officer for the contested case proceedings, issued his proposed findings of fact, conclusions of law and decision and order on the matter at the end of February.
Anderson could not have asked for anything more than Tanaka would give him. Virtually every point at issue in the contested case was decided in favor of the applicants. Exceptions to Tanaka’s proposed findings have been made by attorneys for the contestants. What Tanaka finally forwards to the Board of Land and Natural Resources may take account of those exceptions. In any case, the BLNR ultimately will decide whether Anderson receives permission to build the house he wants.
Here are a few of the more controversial points in Tanaka’s finding:
Although Bishop Estate owns the land on which Anderson would build, and although the Department of Land and Natural Resources requires applicants others than owners to obtain the signature of the owners on the permit application, Tanaka decided that it was enough simply to have the separate approval of Bishop Estate.
The parcel on which Anderson would build does not yet exist, but is to be carved out of two far larger land grants. Conservation District statutes and rules are clearly intended to keep the number of “buildable” lots in the Conservation District to a minimum. To go along with this intention, Anderson and the Bishop Estate have said that the original two parcels will be consolidated after Anderson’s house lot has been carved out of them, resulting in no net increase in lots.
All this rides on Bishop Estate keeping its promise not to subdivide further the remaining large lot. But in the contested case hearing itself, John Peterson, testifying on behalf of Bishop Estate, stated that some 10,000 square feet (an area larger than most house lots) would be taken out of the remaining parcel and given to an adjoining landowner, Charles Black, in return for Black’s conveying to the estate an ownership interest in the overgrown roadway parcel that Anderson intends to use as a drive to the site he proposes for a house.
As Donna Leong, attorney for the Tantalus contestants, noted in her exceptions to Tanaka’s findings: “Subdividing is an action in furtherance of development of a property, thus, Bishop Estate does have plans to further develop the remaining property.”
Another controversial finding of Tanaka’s concerns the roadway itself. As Leong points out, the Conservation District Use Application filed by Andersons daughter seeks permission to develop the house lot (delineated in only the vaguest of ways).
At no time does it discuss the need for work on the roadway parcel, although that parcel itself lies wholly within the Conservation District and will require extensive work before it can be used for vehicular access. Moreover, the roadway parcel is jointly owned by parties whose land abuts it. If Anderson desires to apply for a Conservation District Use Permit on that parcel, Leong notes, “the signatures of all of the landowners of the roadway lot” would be required on the application form, by the Board’s own rules.
While some may argue that these, and points like them, are merely technical points, Tanaka goes to the heart of the matter in his finding that the “applicant’s proposal, subject to the recommended conditions imposed, is consistent with the purpose, intent, conditions, and guidelines” of pertinent DLNR rules and is “consistent with the objectives of the Resource Subzone of the Conservation District.”
It is true that the award of “conditional” permits, as sought by Anderson, for houses in the Resource subzone may have been liberally awarded in the past by the Land Board. It is undisputed, however, that many of the houses that result have been egregiously violative of the intention of the Board in establishing the Resource subzone namely, “to develop, with proper management, areas to ensure sustained use of the natural resources of those areas.” Boundaries of the Resource subzone, quoting further from DLNR rules, 13-2-13, “shall encompass: Lands necessary for providing future parkland and lands presently used for… parks; Lands suitable for growing and harvesting of commercial timber…, Lands suitable for outdoor recreational uses such as hunting, fishing, hiking, camping, and picnicking, offshore islands ..; Lands and territorial waters below the upper reaches of the wash of the waves… and: All territorial water not expressly assigned to any subzone.”
It is not obvious in what way creation of a new buildable lot, construction thereupon of a 5,000 square-foot house, and the clearing, grading, and paving of roadway leading to it can be regarded as consistent with these objectives.
Unlike the award of permits for nonconforming use, where owners may be regarded as having a vested right to a house or farm or other development on their land, the award of a permit for conditional use implies no such vesting. The BLNR is under no obligation, either by its own precedent or rule, to award any permit for conditional use. It is, to the contrary, bound by the language of its rules, which call for the objectives of the subzone to prevail, absent an overpowering public interest (which certainly cannot be said to exist in this case).
Keith Tanaka, the DLNR hearing officer in this case, was one of the State’s attorneys who took the case involving the construction of H-3 all the way to the Supreme Court. That matter resulted in the court refusing to overturn the Board’s action in approving H-3’s construction, in the Conservation District, as a conditional use. It is, therefore, not entirely unexpected that he would rule in this way on Anderson’s application. Not unexpected, but nonetheless disappointing.
CDU Watch
The Anderson permit application rides heavily on the fact that the Board has awarded conditional use permits for houses in the Resource subzone – a precedent that, according to Roger Evans, was begun when the Board approved the request of George Isaacs to build a house on Conservation District land, in the Resource subzone, along Puakea Bay, on the Big Island. Evans is administrator of the DLNR’s Office of Conservation and Environmental Affairs, which processes applications for Conservation District Use Permits.
Isaacs’ house is, if anything, as eloquent an argument against this practice as one is likely to find. The development far exceeded what was allowed by the permit. Only when complaints began to pour in from the neighboring community did Isaacs apply for after-the-fact permits to cover the excesses. (For more on the Isaacs’ case, readers may wish to consult the January and March 1992 editions of Environment Hawai’i.)
Isaac’s after-the-fact permit applications will be the subject of a Land Board hearing April 9. The hearing will start at 6 p.m. and be held in the tour lobby of the Royal Waikoloa Hotel (a part of the Waikoloa Beach Resort).
Meanwhile, attorneys for Ralph Engelstad, the Las Vegas casino owner seeking to build an enormous house in the Limited subzone above Lanikai, O’ahu, have applied for a time extension on Engelstad’s permit. Last December, the Board rejected house plans as “grandiose,” noting at the same time that the likelihood of Engelstad completing construction by the March 1992 deadline seemed dim – a point on which Engelstad’s lawyer, Ben Matsubara, agreed. Matsubara agreed, too, that the Board was under no obligation to grant a time extension, although he also voiced his expectation that it would do so.
Matsubara’s request for the extra time is based largely on the fact that in February 1988, the City and County of Honolulu imposed a two-year moratorium on grading on Lanikai hillsides during which time, Matsubara claims, his client’s hands were tied. However, activity on Conservation Land has generally been held to be regulated entirely by the state, with county restrictions applying only to land in the three other state land-use classifications (agricultural, rural, and urban). This point was made in a meeting of representatives of the Lanikai Association with deputy attorney general Dona Hanaike (now a deputy director of DLNR), memorialized in a letter to Board Chairman William Paty July 16, 1990. In that letter, Dan Orodenker of the association writes: “Pursuant to representations made by Ms. Dona Hanaike of the Attorney General’s office, we understand that the City and County of Honolulu moratorium on hillside construction in Lanikai does not affect state conservation land.”
In any event, the moratorium expired in 1990. To judge from a letter sent by Matsubara’s associate, Gary B. K. T. Lee, to Paty on January 4, 1991, the Engelstads were not inconvenienced by the moratorium. Reciting the various activities that had taken place at the site, Lee indicated that “in early December 1989, a clearing of a portion of Mr. and Mrs. Engelstad’s property was performed,” among other things. While Lee makes passing mention of the city’s moratorium, he gives no indication whatsoever that it kept his clients from proceeding with work preparatory to construction.
One might think that had the city moratorium indeed been a factor delaying the Engelstads’ progress on their planned 32,000-square-foot house, Matsubara would have brought up the point sooner. To raise it only at the eleventh hour of the permit and more than two years after the moratorium expired – suggests it is more an excuse for failure to comply than it was ever a legitimate obstacle to the Engelstads’ pursuit of their house plans.
Champion of the Homeless?
As an aside, we take note of Ralph Engelstad’s recent efforts on behalf of the homeless. A self-styled minister, the Rev. John 3:16 Cook, recently arrived in Honolulu from Las Vegas, rented a $6,000-a-month house in Lanikai (with Engelstad footing the bill, he claimed), and entertained (by his account) several hundred homeless men for the duration of his stay here.
According to an account in the Sunday Star-Bulletin & Advertiser of March 1, 1992, “Cook said he approached Engelstad … and asked him to support him in opening a mission in Las Vegas. Engelstad agreed but first offered to send Cook to Hawai’i for three weeks.”
Engelstad is a man not otherwise known for his compassion. Indeed, his past flaunting of his Nazi sympathies earned him a reprimand from the Nevada Gaming Commission. If he has had a change of heart, that is to be welcomed. Perhaps he might reconsider spending several tens of millions on his Lanikai house and dedicate it rather to the cause of people who have no shelter, however modest.
If, on the other hand, he was trying to annoy the residents of Lanikai, who have consistently objected to his construction plans, he singularly failed to do so. With the house rented being at the outermost limits of the community, few people seemed to take note of any extra traffic that the temporary homeless shelter was generating. A neighbor two doors away was asked about it by the newspaper reporter, and he indicated he was unaware of Cook’s presence or his guests. When informed of what was going on, the neighbor, David Higgins (president of the non-profit Marimed Foundation), cheered Cook on. “There’s too much NIMBYism as it is,” Higgins was quoted as saying.
Chidiac Restructures Loans
Charles Chidiac, mastermind behind the proposed Hawaiian Riviera Resort, recently got his major creditors to agree to a “loan workout agreement,” parts of which have been recorded at the state Bureau of Conveyances.
Two major loans (Notes 5 and 6, the principal on which totaled $24 million) were assigned from Parmenas Investments, N.V., the bank in the Netherlands Airlines that seems to be linked somehow to Chidiac’s operations, to Den norske Bank, the Norwegian firm that holds Notes 1-4, whose principal value is $22.7 million. Den norske Bank promptly released Notes 4-6 (indicating that somehow they had been satisfied) and reconsolidated Notes 1-4 into one big mortgage, whose principal value now is set at $23,887,235.
According to a recorded document setting forth several of the terms of the Loan Workout Agreement, Den norske Bank will receive 2.5 percent of the selling price of each and every condominium unit sold in the Marina Village or Palace Villas development until such time as the payment rendered totals $25 million. Additionally until the loan from Den norske Bank is repaid, the bank holds as collateral Chidiac’s option to purchase the remaining 25 percent interest of his former partners in an 1,115-acre parcel adjoining the core development area.
The Land Use Commission gave Chidiac approval to go ahead with his resort last spring, subject to his providing the LUC with a financing plan. To date, be has not come forward with one.
On March 16, meanwhile, briefs were filed in Circuit Court in Hilo by parties seeking to overturn the LUC decision. Chidiac has two months in which to file his response with the court.
Volume 2, Number 10 April 1992